For this piece of work I will be examining the principles of duty of care using relevant case law examples. I will be discussing the consequences where there is a breach of that duty.  I will also give a brief explanation of statutory liability and highlight some if the controls on exclusion clauses at common law and by legislation.

Duty of Care.

Duty of care is a legal obligation that is imposed on any individual but only when they adhere to a reasonable standard of care while performing any acts that could harm others. A duty of care must clearly be recognised in order to proceed with an action in negligence. The claimant must be able to articulate a duty of care imposed by law which the defendant has breached. Breaching a duty may subject an individual to liability in tort. Duty of care can be known as the responsibilities of an individual held towards another individual in society. Duty of care cannot really be defined by law; however it will often develop through the jurisprudence of common law. An example would be doctors. Doctors will be held reasonable standards for members of their profession, rather than those of the general public in cases related to them. In cases of landowners in common law, is the extent of their duty of care to those who came on their premises. However this varied depending on whether a person was classified as a trespasser, invitee or licensee. This law was however, abolished in some common law jurisdictions. The duty of care may exist between individuals with no current direct relationship, however they will eventually become related in some manner.

Breach of duty of care.

In tort their can be no liability in negligence unless the claimant can prove both that he/she owed a duty of care by the defendant and that there has been a breach of that duty. Breach of duty actually refers to the standard of care that is owed and the breach occurs when he/she falls below that standard of behaviour. Having established that there is a duty of care the claimant must prove that the defendant failed to do what the reasonable person would have done in the same situation. Breach of duty of care is recognised if the defendant fails to come up to that standard. This is judged by the following factors;

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  • What did the defendant know?
  • What was the degree of risk? The greater the risk the more serious the harm can be inflicted, therefore the greater the precautions that the defendant will be required to take.
  • How practical were these precautions?
  • What is the social importance of the defendant activity?

The minimum standard of care to be achieved by the reasonable person is objective. For example there is no direct reference to the actual strengths or weaknesses of the particular defendant in the instant case.

Standard of care is usually measured by an objective test. This is ...

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